FROM WARREN CIRCUIT COURT HONORABLE JOHN R. GRISE, JUDGE
ACTION NOS. 89-CR-00636, 89-CR-00635
FOR APPELLANTS: Amy Robinson Staples Meredith Krause
Assistant Public Advocates Department of Public Advocacy
FOR APPELLEE: Andy Beshear Attorney General of Kentucky Jason
B. Moore Assistant Attorney General Frankfort, Kentucky
BEFORE: J. LAMBERT, STUMBO, AND TAYLOR, JUDGES.
LAMBERT, J., JUDGE.
and Barbara Schambon appeal from the Warren Circuit
Court's denial of their Kentucky Rules of Civil Procedure
(CR) 60.02 motions for relief. On appeal, they argue that the
trial court erred when, after an evidentiary hearing, it
found that a new trial was not warranted based on the
recanted testimony of a trial witness and when it found that
the motion was untimely. For the following reasons, we
1990, a Jefferson County jury convicted the Schambons of
eight counts of first-degree sodomy, three counts of
first-degree criminal abuse, twenty-one counts of
second-degree sodomy, and twenty-eight counts of
second-degree animal cruelty. Barbara was also convicted of
one count of incest. The sodomy, criminal abuse, and incest
charges arose from acts the Schambons committed on their four
children: thirteen-year-old C.S.; ten-year-old E.S.;
eight-year-old A.S.; and five-year-old R.S. The convictions
for these charges rested almost entirely on the testimonies
of C.S. and R.S. The animal cruelty charges arose from
appellants' mistreatment of a large number of animals
found at their residence. Each appellant was sentenced to a total of
eighty-five years' imprisonment. Final judgments were
entered July 19, 1990.
direct appeal to the Supreme Court of Kentucky, the Schambons
argued that the trial court erred by trying them jointly, by
trying the animal cruelty and sex offenses together, by
admitting certain evidence, by denying their motion for a
directed verdict on the sex offenses, and by permitting the
prosecutor to make improper arguments. The Court rejected
each of the arguments and affirmed their convictions and
April 3, 2006, the Schambons filed their motions, pursuant to
CR 60.02, that are the subject of this appeal. In those
motions, the Schambons claimed, among other things, that they
were entitled to relief based on 1) A.S.'s and E.S.'s
statements that no sexual abuse occurred; 2) C.S. recanting
his claims of sexual abuse and acknowledging that he
influenced his younger brother, R.S., to make the false
claims; 3) a 2003 affidavit from the children's guardian
ad litem in which he stated that C.S. told him prior
to trial that he had not been abused; 4) the results of a
polygraph test revealing that neither Floyd nor Barbara was
being deceptive when asked whether they had any sexual
contact with R.S.; 5) a report by Dr. Eric Y. Drogin
concluding that deficiencies in the 1989 forensic interview
with R.S. "cast significant doubt" on R.S.'s
responses and his subsequent testimony; and 6) an affidavit
from Dr. Ralph Underwager concluding that the 1989 forensic
interview with R.S. was flawed.
trial court denied the Schambons' motions without an
evidentiary hearing. On appeal, a panel of this Court
reversed the trial court's denial of the Schambons'
request for an evidentiary hearing, vacated its order denying
relief under CR 60.02, and remanded the matter to the trial
court for an evidentiary hearing. In reversing, this Court
determined that the affidavit submitted by C.S. as part of
the Schambons' motion, while not contradicting the
testimony he gave at trial, contradicted a report C.S. had
written and was questioned about at trial. Thus, we held that
"[C.S.]'s affidavit sufficiently contradicts his
trial testimony and raises an issue of fact that merits an
evidentiary hearing." Schambon v. Commonwealth,
2010 WL 4025871 at *8 (2009-CA-000793-MR &
2009-CA-000794-MR) (Ky. App. Oct. 15, 2010). We further found
that the trial court "prematurely determined that the
motions were not timely[, ]" and that the Schambons
should be "permitted to present, through testimony at
the evidentiary hearing, the reasons for delay."
Id. at *9.
October 18, 2013, the trial court conducted an evidentiary
hearing and heard testimony from the Schambons' former
attorneys as well as testimony from C.S. and two expert
witnesses, Dr. Drogin and Dr. Keith Lyle, who testified to
flaws in the forensic interview. The guardian ad
litem testified via deposition.
hearing the testimony, the trial court on September 24, 2015,
entered an order denying the Schambons' motions. Therein,
the trial court once again found that the motions had not
been filed within a reasonable time. Further, the court found
that the motions lacked merit. This appeal followed.
standard of review of an appeal involving a CR 60.02 motion
is whether the trial court abused its discretion."
White v. Commonwealth, 32 S.W.3d 83, 86 (Ky. App.
2000); see also Kurtsinger v. Bd. of Trustees of Ky. Ret.
Sys., 90 S.W.3d 454, 456 (Ky. 2002); Brown v.
Commonwealth, 932 S.W.2d 359, 362 (Ky. 1996). To amount
to an abuse of discretion, the trial court's decision
must be "arbitrary, unreasonable, unfair, or unsupported
by sound legal principles." Clark v.
Commonwealth, 223 S.W.3d 90, 95 (Ky. 2007) (quoting
Commonwealth v. English, 993 S.W.2d 941, 945 (Ky.
1999)). "Absent some flagrant miscarriage of justice an
[appellate] court should respect the trial court's
exercise of discretion[.]" Gross v.
Commonwealth, 648 S.W.2d 853, 858 (Ky. 1983).
may be granted under CR 60.02(f) for any reason of an
extraordinary nature justifying relief. A CR 60.02(f) motion,
however, must be made within a ...